Khalil Zoubairi v. Eric Holder, Jr. , 586 F. App'x 112 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2019
KHALIL ZOUBAIRI; MOUAD ZOUBAIRI; ZAID ZOUBAIRI,
Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: August 27, 2014 Decided: October 8, 2014
Before SHEDD and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition denied by unpublished per curiam opinion.
Jorgelina E. Araneda, ARANEDA & STROUD IMMIGRATION LAW GROUP,
Raleigh, North Carolina, for Petitioners. Stuart Delery,
Assistant Attorney General, Civil Division, Ernesto H. Molina,
Jr., Assistant Director, Drew C. Brinkman, Trial Attorney,
Office of Immigration Litigation, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Khalil Zoubairi (Zoubairi), a native and citizen of
Morocco, petitions for review from a final order of removal
issued by the Board of Immigration Appeals (the Board). 1 We
affirm.
Zoubairi entered the United States on a tourist visa in
1995 and overstayed his visa. On December 7, 2001, Zoubairi
married Joyce Clark, a United States citizen, and was granted
lawful permanent resident (LPR) status on a conditional basis
pursuant to 8 U.S.C. § 1186a. To remove the condition and
obtain complete LPR status, Zoubairi and Clark filed a joint
petition to remove the conditional basis of his LPR status on
August 4, 2004. On September 29, 2004, the Department of
Homeland Security (DHS) sought to rescind Zoubairi’s LPR status
in Immigration Court in Atlanta, Georgia, contending that he did
not enter into his marriage with Clark in good faith.
Zoubairi and Clark were divorced on August 26, 2005. On
June 9, 2008, Zoubairi withdrew the previously-filed joint
petition to remove the conditional basis of his LPR status and
instead applied for a waiver of the joint-filing requirement
1
Zoubairi’s minor sons also participate in this appeal as
derivative beneficiaries to Zoubairi’s claim for relief.
Because the claims of the minor sons are derivative, we provide
no separate analysis for Zoubairi’s minor sons.
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pursuant to 8 U.S.C. § 1186a(c)(4), claiming that he had married
Clark in good faith but the marriage had ended in divorce. On
October 8, 2009, DHS denied Zoubairi’s waiver application and
terminated his conditional LPR status, finding that he failed to
show that he married Clark in good faith.
On April 16, 2010, DHS commenced removal proceedings
against Zoubairi by filing a Notice to Appear in Immigration
Court in Charlotte, North Carolina. 2 DHS alleged that Zoubairi
was removable as an alien: (1) who had remained in the United
States for a time period longer than permitted; (2) who had been
inadmissible at the time he was granted conditional LPR status;
and (3) whose conditional LPR status had been terminated.
Zoubairi appeared before an immigration judge (IJ) and conceded
his removability. However, he renewed his application for a
waiver of the joint-filing requirement, once again claiming that
he had married Clark in good faith.
On October 24, 2011, and March 22, 2012, the IJ held
hearings. On September 6, 2012, the IJ issued a written
decision. The IJ found that Zoubairi was removable as charged
based on his concession of removability and further found that
neither Zoubairi nor Clark were credible on account of the
2
Because DHS sought removal, the rescission proceeding in
Immigration Court in Atlanta was terminated.
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numerous inconsistencies in their testimony and the record
evidence. Because Zoubairi had not entered into his marriage
with Clark in good faith, the IJ found that Zoubairi was not
entitled to a waiver of the joint-filing requirement and ordered
that he be removed from the United States.
Zoubairi appealed the IJ’s decision to the Board. On July
16, 2013, the Board dismissed the appeal, finding no clear error
in the IJ’s determination that Zoubairi had not married Clark in
good faith. This petition for review followed.
In determining whether an alien has entered into a marriage
in good-faith, “the central question is whether [the couple]
intended to establish a life together at the time they were
married.” Damon v. Ashcroft, 360 F.3d 1084, 1088 (9th Cir.
2004). Under the relevant federal regulation, DHS examines all
relevant evidence to gauge this intent, in particular: (1) the
couple’s combined assets and liabilities; (2) the length of time
the couple cohabited after marriage; and (3) the birth
certificates of children born to the marriage. 8 C.F.R.
§ 1216.5(e)(2).
We have reviewed the record and the decisions below and
conclude that the evidence in the record clearly and
overwhelmingly supports the Board’s determination that Zoubairi
did not intend to establish a marital life with Clark at the
time he entered into the marriage, notwithstanding his
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challenges to this determination on evidentiary, constitutional,
and other grounds. Because he did not enter into the marriage
in good faith, we hold that Zoubairi is not entitled to a waiver
of the joint-filing requirement. In so holding, we decline to
address the government’s argument that we are precluded from
reviewing Zoubairi’s challenges to the Board’s waiver decision,
save his statutory and constitutional challenges. See 8 U.S.C.
§ 1252(a)(2)(B)(ii) (precluding review of any “decision or
action of the Attorney General . . . the authority for which is
specified under this subchapter to be in the discretion of the
Attorney General”); id. § 1252(a)(2)(D) (authorizing review of
“constitutional claims or questions of law”).
Accordingly, the petition for review is denied. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
PETITION DENIED
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